This articleneeds additional citations forverification.(July 2013) |
Jurisdiction(fromLatinjuris'law' +dictio'speech' or 'declaration') is the legal term for thelegal authoritygranted to a legal entity to enactjustice.Infederationslike the United States, the concept of jurisdiction applies at multiple levels (e.g., local,state,and federal).
Jurisdiction draws its substance frominternational law,conflict of laws,constitutional law,and the powers of theexecutiveandlegislative branchesofgovernmentto allocate resources to best serve the needs ofsociety.
International dimension
editGenerally, international laws and treaties provide agreements whichnationsagree to be bound to. Such agreements are not always established or maintained. Extraterritorial jurisdiction is exercised through three principles outlined in theUN charter.These are equality of states, territorial sovereignty and non-intervention.[1]This raises questions of when can many states prescribe or enforce jurisdiction. TheLotuscaseestablishes two key rules to the prescription and enforcement of jurisdiction. The case outlines that jurisdiction is territorial and that a state may not exercise its jurisdiction in the territory of another state unless there is a rule that permits this.[2]On that same note, states enjoy a wide measure of discretion to prescribe jurisdiction over persons, property and acts within their own territory unless there was a rule that prohibits this.[2]
Political issue
editSupranationalorganizations provide mechanisms whereby disputes between nations may be resolved througharbitrationormediation.When acountryis recognized asde jure,it is an acknowledgment by the otherde jurenations that the country hassovereigntyand the right to exist.
However, it is often at the discretion of each nation whether to co-operate or participate. If a nation does agree to participate in activities of the supranational bodies and accept decisions, the nation is giving up its sovereign authority and thereby allocating power to these bodies.
Insofar as these bodies or nominated individuals may resolve disputes through judicial or quasi-judicial means, or promotetreatyobligations in the nature of laws, the power ceded to these bodies cumulatively represents its own jurisdiction. But no matter how powerful each body may appear to be, the extent to which any of theirjudgmentsmay be enforced, or proposed treaties and conventions may become, or remain, effective within the territorial boundaries of each nation is a political matter under the sovereign control each nation.
International and municipal
editThe fact that international organizations, courts and tribunals have been created raises the difficult question of how to co-ordinate their activities with those of national courts. If the two sets of bodies do not haveconcurrentjurisdiction but, as in the case of theInternational Criminal Court(ICC), the relationship is expressly based on the principle ofcomplementarity,i.e., the international court is subsidiary or complementary to national courts, the difficulty is avoided. But if the jurisdiction claimed is concurrent or, as in the case ofInternational Criminal Tribunal for the former Yugoslavia(ICTY), the international tribunal is to prevail over national courts, the problems are more difficult to resolve politically.
The idea ofuniversal jurisdictionis fundamental to the operation ofglobal organizationssuch as theUnited Nationsand theInternational Court of Justice(ICJ), which jointly assert the benefit of maintaining legal entities with jurisdiction over a wide range of matters of significance to nations (the ICJ should not be confused with the ICC and this version of "universal jurisdiction" is not the same as that enacted in theWar Crimes Law (Belgium),which is an assertion of extraterritorial jurisdiction that will fail to gain implementation in any other state under the standard provisions ofpublic policy). Under Article 34 Statute of the ICJ[3]only nations may be parties in cases before the Court and, under Article 36, the jurisdiction comprises all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force. But, to invoke the jurisdiction in any given case, all the parties have to accept the prospective judgment as binding. This reduces the risk of wasting the Court's time.
Despite the safeguards built into the constitutions of most of these organizations, courts and tribunals, the concept of universal jurisdiction is controversial among those nations which prefer unilateral to multilateral solutions through the use of executive or military authority, sometimes described asrealpolitik-based diplomacy.
Within other international contexts, there areintergovernmental organizationssuch as theWorld Trade Organization(WTO) that have socially and economically significant dispute resolution functions but, again, even though their jurisdiction may be invoked to hear the cases, the power to enforce their decisions is at the will of the nations affected, save that the WTO is permitted to allow retaliatory action by successful nations against those nations found to be in breach ofinternational trade law.At a regional level, groups of nations can create political and legal bodies with sometimes complicated patchworks of overlapping provisions detailing the jurisdictional relationships between the member states and providing for some degree ofharmonizationbetween their national legislative and judicial functions, for example, theEuropean UnionandAfrican Unionboth have the potential to become federated nations although the political barriers to such unification in the face of entrenchednationalismwill be very difficult to overcome. Each such group may form transnational institutions with declared legislative or judicial powers. For example, in Europe, theEuropean Court of Justicehas been given jurisdiction as the ultimate appellate court to the member states on issues of European law. This jurisdiction is entrenched, and its authority could only be denied by a member nation if that member nation asserts its sovereignty and withdraws from the union.
Law
editThe standard treaties and conventions leave the issue of implementation to each nation, i.e. there is no general rule in international law that treaties havedirect effectinmunicipal law,but some nations, by virtue of their membership of supranational bodies, allow the direct incorporation of rights or enactlegislationto honor their international commitments. Hence,citizensin those nations can invoke the jurisdiction of local courts to enforce rights granted under international law wherever there is incorporation. If there is no direct effect or legislation, there are two theories to justify the courts incorporating international into municipal law:
- Monism
- This theory characterizes international and municipal law as a single legal system with municipal law subordinate to international law. Hence, in theNetherlands,all treaties and the orders of international organizations are effective without any action being required to convert international into municipal law. This has an interesting consequence because treaties that limit or extend the powers of the Dutch government are automatically considered a part of their constitutional law, for example, theEuropean Convention for the Protection of Human Rights and Fundamental Freedomsand theInternational Covenant on Civil and Political Rights.In nations adopting this theory, the local courts automatically accept jurisdiction to adjudicate onlawsuitsrelying on international law principles.
- Dualism
- This theory regards international and municipal law as separate systems so that the municipal courts can only apply international law either when it has been incorporated into municipal law or when the courts incorporate international law on their own motion. In theUnited Kingdom,for example, a treaty is not effective until it has been incorporated, at which time it becomes enforceable in the courts by any private citizen, where appropriate, even against the UK Government. Otherwise the courts have a discretion to apply international law where it does not conflict withstatuteor thecommon law.The constitutional principle ofparliamentary supremacypermits the legislature to enact any law inconsistent with any international treaty obligations even though the government is a signatory to those treaties.
In the United States, theSupremacy Clauseof the United States Constitution makes all treaties that have been ratified under the authority of the United States and customary international law to be a part of the "Supreme Law of the Land" (along with the Constitution itself and acts of Congress passed pursuant to it) (U.S. Const.art. VI Cl. 2) As such, the law of the land is binding on the federal government as well as on state and local governments. According to theSupreme Court of the United States,the treaty power authorizesCongressto legislate under theNecessary and Proper Clausein areas beyond those specifically conferred on Congress (Missouri v. Holland,252 U.S. 416 (1920)).
International
editThis concerns the relationships both between courts in differentjurisdictions,and between courts within the same jurisdiction. The usual legal doctrine under which questions of jurisdiction are decided is termedforum non conveniens.
To deal with the issue offorum shopping,nations are urged to adopt more positive rules on conflict of laws. TheHague Conferenceand other international bodies have made recommendations on jurisdictional matters, butlitigantswith the encouragement oflawyerson acontingent feecontinue to shop for forums.
Jurisdictional principles
editUnder international law there are different principles that are recognized to establish a state's ability to exercise criminal jurisdiction when it comes to a person. There is no hierarchy when it comes to any of the principles. States must therefore work together to solve issues of who may exercise their jurisdiction when it comes to issues of multiple principles being allowed. The principles are Territorial Principle, Nationality Principle, Passive Personality Principle, Protective Principle, Universality Principle
Territorial principle:This principle states that the State where the crime has been committed may exercise jurisdiction. This is one of the most straightforward and least controversial of the principles. This is also the only principle that is territorial in nature; all other forms are extraterritorial.[4][5]
Nationality principle(also known as the Active Personality Principle): This principle is based around a person's nationality and allows States to exercise jurisdiction when it comes to their nationality, both within and outside the State's territory. Seeing as the territoriality principle already gives the State the right to exercise jurisdiction, this principle is primarily used as a justification for prosecuting crimes committed abroad by a States nationals.[6][7]There is a growing trend to allow States to also apply this principle to permanent residents abroad as well (for example: Denmark Criminal Code (2005), sec 7; Finland Criminal Code (2015), sec 6; Iceland Criminal Code (2014), art 5; Latvia Criminal Code (2013), sec 4; Netherlands Criminal Code (2019), art 7; Norway Criminal Code (2005), sec 12; Swedish Criminal Code (1999), sec 2; Lithuania Criminal Code (2015), art 5).
Passive Personality Principle:This principle is similar to the Nationality Principle, except you are exercising jurisdiction against a foreign national that has committed a criminal act against its own national. The idea is that a State has a duty to protect its nationals and therefore if someone harms their nationals that State has the right to prosecute the accused.[8][9]
Protective principle:This principle allows States to exercise jurisdiction when it comes to foreign nationals for acts committed outside their territory that have or are intended to have a prejudicial impact upon the State. It is especially used when it comes to matters of national security.[10][11]
Universality principle:This is the broadest of all the principles. The basis is that a State has the right, sometimes even the obligation, to exercise jurisdiction when it comes to the most serious violations of international criminal law; for examplegenocide,crimes against humanity,extrajudicial executions,war crimes,torture,andforced disappearances.This principle also goes further than the other principles as there is attached to it the obligation to either prosecute the accused or extradite them to a State that will, known asaut dedere aut judicare.[12][13]
Supranational
editAt a supranational level, countries have adopted a range of treaty and convention obligations to relate the right of individual litigants to invoke the jurisdiction of national courts and to enforce the judgments obtained. For example, themember nationsof theEECsigned theBrussels Conventionin 1968 and, subject to amendments as new nations joined, it represents the default law for all twenty-seven Member States of what is now termed theEuropean Unionon the relationships between the courts in the different countries. In addition, theLugano Convention(1988) binds the European Union and theEuropean Free Trade Association.
In effect from 1 March 2002, all theEuropean Union member statesexceptDenmarkacceptedCouncil Regulation (EC) 44/2001,which makes major changes to the Brussels Convention and isdirectly effectivein the member nations. Council Regulation (EC) 44/2001 now also applies as between the rest of the EU Member States and Denmark due to an agreement reached between the European Community and Denmark.[14]In some legal areas, at least, the reciprocalenforcement of foreign judgmentsis now more straightforward. At a national level, the traditional rules still determine jurisdiction over persons who are notdomiciledor habitually resident in the European Union or the Lugano area.
National
editMany nations are subdivided into states orprovinces(i.e. asubnational "state"). In afederation—as can be found inAustralia,Brazil,India,Mexico,and theUnited States—such subunits will exercisejurisdictionthrough the court systems as defined by the executives and legislatures.
When the jurisdictions of government entities overlap one another—for example between a state and the federation to which it belongs—their jurisdiction is asharedorconcurrentjurisdiction. Otherwise, one government entity will have exclusive jurisdiction over the shared area. When jurisdiction is concurrent, one government entity may have supreme jurisdiction over the other entity if their laws conflict. If the executive or legislative powers within the jurisdiction are not restricted, or have only limited restrictions, these government branches have plenary power such as a nationalpolicing power.Otherwise, anenabling actgrants only limited or enumerated powers.
Child custody cases in the U.S. are a prime example of jurisdictional dilemmas caused by different states under a federal alignment. When parents and children are in different states, there is the possibility of different state court orders over-ruling each other. The U.S. solved this problem by adopting theUniform Child Custody Jurisdiction and Enforcement Act.The act established criteria for determining which state has primary jurisdiction, which allows courts to defer the hearing of a case if an appropriate administrative agency determines so.[15][16]
United States
editThe primary distinctions between areas of jurisdiction arecodifiedat the federal level. In the United States'common lawsystem, jurisdiction is conceptually divided between jurisdiction over thesubject matterof a case and personal jurisdiction over the parties to the case.[17]
A court whose subject matter jurisdiction is limited to certain types of controversies (for example, suits inadmiraltyor suits where the monetary amount sought is less than a specified sum) is sometimes referred to as acourt of special jurisdictionorcourt of limited jurisdiction.
In U.S. federal courts, courts must consider subject matter jurisdictionsua sponteand therefore recognize their own lack of jurisdiction even if neither party has raised the matter.[18]
General and limited jurisdiction
editA court whose subject matter is not limited to certain types of controversy is referred to as acourt of general jurisdiction.In theU.S. states,each state has courts of general jurisdiction; most states also have some courts of limited jurisdiction. Federal courts (those operated by thefederal government) are all courts of limited jurisdiction.Federal jurisdictionis divided intofederal question jurisdictionanddiversity jurisdiction.TheUnited States district courtsmay hear only cases arising under federal law and treaties, cases involving ambassadors, admiralty cases, controversies between states or between a state and citizens of another state, lawsuits involving citizens of different states, and against foreign states and citizens.
Certain courts, particularly theUnited States Supreme Courtand moststate supreme courts,havediscretionary jurisdiction,meaning that they can choose which cases to hear from among all the cases presented on appeal. Such courts generally only choose to hear cases that would settle important and controversial points of law. Though these courts have discretion to deny cases they otherwise could adjudicate, no court has the discretion to hear a case that falls outside of its subject matter jurisdiction.
Original and appellate jurisdiction
editIt is also necessary to distinguish betweenoriginal jurisdictionandappellate jurisdiction.A court of original jurisdiction has the power to hear cases as they are first initiated by aplaintiff,while a court of appellate jurisdiction may only hear an action after the court of original jurisdiction (or a lower appellate court) has heard the matter. For example, inUnited States federal courts,the United States district courts have original jurisdiction over a number of different matters (as mentioned above), and theUnited States court of appealshave appellate jurisdiction over matters appealed from the district courts. The U.S. Supreme Court, in turn, has appellate jurisdiction (of a discretionary nature) over the Courts of Appeals, as well as the state supreme courts, by means ofwrit of certiorari.
However, in a special class of cases, the U.S. Supreme Court has the power to exercise original jurisdiction. Under28 U.S.C.§ 1251,the Supreme court has original and exclusive jurisdiction over controversies between two or more states, and original (but non-exclusive) jurisdiction over cases involving officials of foreign states, controversies between thefederal governmentand a state, actions by a state against the citizens of another state or foreign country.
Example of jurisdiction
editAs a practical example of court jurisdiction, as of 2013Utahhas five types of courts, each for different legal matters and different physical territories.[19]One-hundred-and-eight judges oversee Justice Courts, which handle traffic and parking citations,misdemeanorcrimes, and mostsmall claimscases. Seventy-one judges preside over District Courts, which deal with civil cases exceeding small claims limits,probatelaw,felonycriminal cases,divorceand child custody cases, some small claims, and appeals from Justice Courts. Twenty-eight judges handle Juvenile Court, which oversees most people under 18 years old who are accused of a crime, as well as cases of alleged child abuse or neglect; serious crimes committed by 16 or 17 year old persons may be referred to the District Courts. Seven judges in the Appeals Court hear most criminal appeals from District Courts, all appeals from juvenile court and all domestic/divorce cases from District Court, as well as some cases transferred to them by the Supreme Court. The Supreme Court seats five judges who hear appeals on first-degree felonies (the most serious) including capital crimes, as well as all civil cases from District Court (excepting divorce/domestic cases). The Supreme Court also oversees cases involving interpretation of the state Constitution, election matters, judicial conduct, and alleged misconduct by lawyers. This example shows how matters arising in the same physical territory might be seen in different courts. A minor traffic infraction originating inOrem, Utahis handled by the Orem Justice Court. However, a second-degree felony arrest and a first-degree felony arrest in Orem would be under the jurisdiction of the District Court inProvo, Utah.If both the minor traffic offense and the felony arrests resulted in guilty verdicts, the traffic conviction could be appealed to the District Court in Provo, while the second-degree felony appeal would be heard by the Appeals Court in Salt Lake City and the first-degree felony appeal would be heard by the Supreme Court. Similarly for civil matters, a small claims case arising in Orem would probably be heard in the Orem Justice Court, while a divorce filed by an Orem resident would be heard by the District Court in Provo. The above examples apply only to cases of Utah state law; any case under Federal jurisdiction would be handled by a different court system. All Federal cases arising in Utah are under the jurisdiction of theUnited States District Court for the District of Utah,headquartered inSalt Lake City, Utah,and would be heard inone of threeFederal courthouses.
Territorial meaning
editThe word "jurisdiction" is also used, especially in informal writing, to refer to astateor political subdivision generally, or to its government, rather than to its legal authority.[20]
Franchise jurisdiction
editIn the history of English common law, a jurisdiction could be held as a form of property (or more precisely anincorporeal hereditament) called afranchise.Traditional franchise jurisdictions of various powers were held bymunicipal corporations,religious houses,guilds,earlyuniversities,theWelsh Marches,andcounties palatine.Types of franchise courts includedcourts baron,courts leet,merchant courts,and thestannary courtsthat dealt with disputes involving the tin miners ofCornwall.The originalroyal chartersof theAmerican coloniesincluded broad grants of franchise jurisdiction along with other governmental powers tocorporationsor individuals, as did the charters for many other colonial companies such as theBritish East India CompanyandBritish South Africa Company.Analogous jurisdiction existed in medieval times on the European Continent. Over the course of the 19th and 20th centuries, franchise jurisdictions were largely eliminated. Several formerly important franchise courts were not officially abolished untilCourts Act of 1971.
See also
edit- Jurisdiction (area)
- Guantánamo Bay Naval Base
- Immunity from prosecution (international law)
- Labor unions in the United States– a different use of the word jurisdiction
- Law enforcement agency– a different use of the word jurisdiction
- Lawsuits against God
- Private jurisdiction
- Rasul v. Bush
- State immunity
- Universal jurisdiction
References
edit- ^Boister, Neil (2018).An introduction to transnational criminal law.p. 247.ISBN9780198795995.OCLC1035427772.
- ^abSS Lotus (France v Turkey), 1927 PCIJ series A No.10, para 19
- ^"ICJ-CIJ.org".icj-cij.org.Archived fromthe originalon 3 December 2005.Retrieved8 May2018.
- ^Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 251–254.
- ^Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 652–659.
- ^Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 255–256.
- ^Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 659–664.
- ^Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 257–258.
- ^Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 664–666.
- ^Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 256–257.
- ^Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 666–668.
- ^Gideon Boas, Public International Law: Contemporary Principle and Perspectives (Edward Elgar 2012) pp. 258–259.
- ^Malcolm Shaw, International Law (6th edition, Cambridge University Press 2008) pp. 668–686.
- ^"Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters".EUR-Lex.Official Journal of the European Union. November 16, 2005. Archived fromthe originalon 2019-04-04.Retrieved2012-10-29.
- ^"Child Custody Jurisdiction and Enforcement Act Summary".Uniform Laws Commission.The National Conference of Commissioners on Uniform State Laws. Archived fromthe originalon 10 October 2017.Retrieved28 June2017.
- ^Adam Leitman Bailey, Dov Treimann (February 19, 2019)."Court of Appeals to Decide Two Cases With Major Landlord-Tenant Implications".New York Law Journal.Archivedfrom the original on December 16, 2019.RetrievedDecember 16,2019.
- ^"Jurisdiction".Wex.Legal Information Institute.Archivedfrom the original on 2016-06-16.Retrieved2016-06-23.
- ^"Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing".Federal Rules of Civil Procedure.Legal Information Institute. December 1, 2023.Archivedfrom the original on 2023-10-20.Retrieved2023-10-08.
- ^"Guide to the Courts"(PDF).Utah State Courts. May 2011. Archived fromthe original(PDF)on 2016-10-26.Retrieved2016-08-07.
- ^"Jurisdiction - Definition from the Merriam-Webster Online Dictionary".Archivedfrom the original on 2009-04-24.See also, e.g.,"Metro's $11 Billion To-Do List,"Archived2017-10-13 at theWayback MachineinThe Washington Post:"Local jurisdictions are also facing shortfalls, and much will depend on the economy and political decisions at the local, state and federal levels";"Teacher pension pinch,"[permanent dead link]in ''The Baltimore Sun:"Large, affluent jurisdictions have scores of high-salaried teachers with correspondingly higher pension costs."
External links
edit- "Jurisdiction"Archived2005-11-05 at theWayback Machineat Cornell.edu
- Supreme Court DecisionArchived2012-04-24 at theWayback Machineon the Guantánamo Bay jurisdiction
- Jurisdiction As Property– franchise jurisdiction